Protection of Information Bill, National Strategic Intelligence Amendment Bill & Intelligence Services Amendment Bill: Briefing

Intelligence Legislation

17 June 2008
Chairperson: Mr C Burgess (ANC)
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Meeting Summary

The Committee indicated that they had already had a comprehensive briefing on the Protection of Information Bill. The presenter therefore merely summarised the clauses of the Bill.

There was much debate about procedural matters. Members were unclear which version of the Bill was being presented. There were also discussions about whether the Ministry should give the Committee any submissions which they had received prior to the tabling of the Bill.

Members expressed much concern about the fact that the final arbiter regarding the decision to review classified information was the executive. They felt that the absence of an independent oversight mechanism gave the Minister too much power and would subject to constitutional challenge. Members also requested reasons for state organs being allowed to apply for exemption from the Bill. There were also questions on whether it was practical to expect all organs of state to review the status of classified records every ten years.

The Ministry also read very briefly through the technical amendments to the National Strategic Intelligence Amendment Bill. This Bill established the National Communications Centre (NCC) to provide signals intelligence capacity. The Intelligence Service Amendment Bill provided for consequential amendments which arose as a result of the National Strategic Intelligence Amendment Bill.

Members raised concerned about the financial implications of establishing the National Communications Centre. However it was decided that operational matters were best dealt with in a closed meeting. It was also decided that a separate presentation would be held on signals intelligence at a later stage.

Meeting report

Protection of Information Bill briefing
Ms Kerensa Millard (Legal Advisor, Ministry of Intelligence) said that she would be presenting on the version of the Bill which had been certified by the State Law Advisors (SLAs). There had been two versions to date that had been released to the public. The first had been approved by Cabinet and then published for comment. That version was then changed, after which it was published for comment again.

Dr S Cwele (ANC) interrupted, saying that the Committee needed clarity on what was being presented. He suggested that the presentation only focus on the Bill before Members.

Adv P Swart (DA) said that Members were not interested in what happened in the past.  They just wanted information on the Bill which was tabled in Parliament. The Committee had already had a comprehensive briefing on the Bill the previous week.

Ms Millard said that a letter had been sent to the Minister of Intelligence about the status of the previous week’s document (especially the explanatory notes). They had also asked him which of the recommendations made would be accepted. The Minister had indicated that he was not in a position to accept recommendations, as the Bill was in Parliament with the Committee now. At this stage the only version being dealt with was the tabled Bill.

Mr L Landers (ANC) said that the Bill was with the Committee and no one should be asking the Minister if he would accept recommendations or not.

Mr D Bloem (ANC) agreed, saying that any information submitted to the Minister should be sent to the Committee.

Dr Cwele said that it was unclear from the previous week’s presentation as to whether the Minister was proposing changes. If so, that would have to follow a separate process.

Adv Swart asked if the document presented the previous week had been an official document.

Ms Millard indicated that it had. However they had given the Committee a new document in the light of the confusion. Ultimately the Committee would have to decide which document to accept.

The Chair asked if the document from 13 June was the latest and if the other two could be ignored.

Ms Millard said that this was the case. The document from 13 June had merely consolidated the submissions received, hereby providing more clarity.

Mr Bloem said that submissions were supposed to be made to this Committee and not to the Minister directly.

Ms Millard corrected the Member, saying that the submissions referred to were made by the Minister’s Review Commission on Intelligence. Also, the Ministry had responded to newspaper articles. They had not entertained public submissions, since that was the role of this Committee.

Mr S Abram (ANC) said that he had gotten a sense that submissions had been provided to the Ministry and not the Committee. He said it would be helpful if these could be forwarded to the Committee.

The Chair disagreed, saying that there were two processes in dealing with the Bill. The executive had held their process and it was now the turn of the legislature. It was not appropriate to ask the executive to pass on comments received during their process, to the legislature.

Mr Cwele agreed, saying that the Committee simply had to consider the Bill and submissions made to it. If they asked the Ministry for their submissions it would amount to revamping the process. Their submissions would probably be irrelevant, since so much would already have changed since then. In any event many of their submissions would have been responding to the Bill in its previous form.

The Chair asked Ms Millard to return to the briefing.

Adv Swart interrupted, saying that the Committee had already had a comprehensive briefing on the Bill. Unless Ms Millard could add something new to what had already been presented, this presentation was unnecessary.

Adv Cwele suggested that the presenter merely summarise the Bill. The detail had been provided the previous week.

Ms Millard read through the following areas of the Bill:
Objectives of the Bill

Preamble- there were recommendations from the Ministerial Review Commission that the wording be changed. This was dealt with further in the Explanatory Notes.

Application: there were criticisms of the fact that the Minister could exempt Government departments from the application of the Bill. The drafters had however felt that many Government departments did not deal with sensitive information which needed to be classified. She explained that valuable and classified information required protection. Valuable information was protected from destruction, alteration or loss. Classified information was protected from disclosure.

Chapter 3 defined the role of the Minister and the Department and was not controversial.

Chapter 4 spelt out the criteria and principles which would determine if information was valuable and gave guidelines on how to protect this information.

Chapter 5 dealt with protection against disclosure. This related to sensitive, commercial and personal information. This chapter merely outlines the categories of state information which are capable of protection. Actual protection has to be in accordance with certain classification criteria.

Chapter 6 dealt with classification of information. State information may be classified as confidential, secret or top secret if the information meets certain criteria. This chapter also outlined the process of classifying information. Only heads of organs of state can classify or reclassify information. Only senior staff members can receive the authority to classify information. When state information is categorized as classified, all individual items of information in that category are automatically deemed to be classified.

The decision to classify must be guided by the following principles:
- secrecy exists to protect national interest
- classification may not under any circumstances be used to conceal an unlawful act/ omission, incompetence, inefficiency or administrative error.

The chapter also deals with declassification and who has the authority to declassify records or to downgrade classifications to a lower level of classification.

Chapter 7 deals with the criteria for the continued classification of information. In order for information to be reclassified, the classification authority had to be satisfied that the declassification “is likely to cause significant and demonstrable harm to the national interest of the Republic”. The Bill imposes a higher threshold to meet for the reclassification or continued classification of state information. The Bill also provides for the regular review of the status of classified information. The decision by the Minister not to reclassify is subject to appeal. However the appeal procedure has been criticized as not providing for and independent and impartial oversight mechanism.

Chapter 8 deals with transfer of records to the National Archives. Records transferred to the archives are automatically declassified.

Chapter 9 deals with the release of declassified information to the public.

Chapter 10 deals with implementation and monitoring. The National Intelligence Agency (NIA) would exercise oversight of the national protection information policies and programmes carried out by organs of state. SA Police Services (SAPS) and SA National Defence Force (SANDF) are exempted from the provisions of this chapter since they have their own internal monitoring processes. Concerns have been expressed that there was no independent monitoring oversight mechanism where disputes were referred to the Minister.

Chapter 11 deals with the offences and penalties relating to the Bill.

Chapter 12 deals with classified information in court proceedings. Classified information that forms part of court records may not be disclosed unless a court orders disclosure.

Comments by the State Law Advisor
Adv Xoliswa Mdludlu (Principal SLA, Office of the Chief SLA) explained how the office of the Chief SLA operated. After they received the draft Bill from the Department they would assist the Department to translate the Cabinet approved policy into legislation. The legislation itself was not presented to Cabinet. The Cabinet approves policy, which the SLA would assist the Department to craft into legislation. The SLA would ensure that the policy approved by Cabinet was not changed during this process and was reflected in the legislation. The Bill was therefore presented to the SLA for certification. The SLA would verify each step with the Department. They would highlight changes they were making to the draft Bill, as well as unclear provisions and recommend changes.

Discussion
The Chair requested that Adv Mdludlu provide the Committee with a document outlining the changes the SLA had made to the draft Bill.

Adv Mdludlu agreed.

Mr Abram asked if the SLA only examined legal phrasing or if they also ensured that the draft Bill presented to it complied with the Constitution.

Adv Mdludlu said that in the process of certification SLAs simplified the phrasing of legislation so that it could be understood by the lay person. They would also look at whether it conflicts with existing laws. They also would determine if it violated any Constitutional principles. If it did, they would determine if it was justifiable. They would do comparative studies to determine how these matters were dealt with abroad.

Dr Cwele asked if the Ministry could provide detail with regard to the cost implication of the Bill.

Ms Millard said that the costs had already been factored into existing structures and processes. The NIA already provided training on Information Security. Costs were factored into the National Vetting Strategy. Details of these would be made available to the Committee. The Ministry informed Cabinet that they had at that stage still been unable to assess whether additional personnel would be needed for the purposes of auditing and declassifying information.

Dr Cwele asked if enough emphasis was placed on the protection of sources or if it was just part of a broad provision in the Bill.

Ms Millard said that this was covered both in this Bill and in other Intelligence Services legislation.

Mr Abram questioned whether it was wise that a person who picked up classified information could simply return it to any police officer.

Ms Millard replied that the drafters had thought it appropriate to allow for classified documents to be returned to SANDF or SAPS representatives.

Mr Abram asked if it was practical to expect all organs of state to review the status of classified records every ten years.

Ms Millard said that each Department would have their own processes and procedures. These processes would not just be done in accordance with the Protection of Information Act (PIA) any longer. It was therefore important that the Bill be referred to in a Schedule in PIA.

Mr Abram expressed concern about the fact that the final arbiter on the decision to review classified information, was the executive. Although the party could approach the courts, one had to bear in mind that this was an expensive process. He asked if there was a reason Cabinet had decided to remove the provision allowing for an independent oversight mechanism. It was dangerous when the executive was not willing to subject itself to scrutiny. He wondered if the SLAs had measured this provision against the Constitution.

Adv Mdludlu said that the Bill complied with the provisions of the Constitution, but it was not possible to say that its provisions would never be challenged.

Adv Swart referred to the references to an independent body or a multi departmental panel reviewing the decision of the Minister (whether or not to reclassify). He asked what the reasons had for Cabinet excluding this provision.

Ms Millard responded that this had been raised by members of the public too. This was further elaborated on in the Explanatory Notes. Cabinet had felt that having an oversight body would amount to creating another administrative body. The Committee would have to make a decision on this matter.

Mr Landers asked why certain organs would be allowed to apply for exemption from the Bill’s provisions. He asked what provisions were in place to monitor SAPS and the SANDF on their protection of state information (since they were excluded from the provisions of Chapter 10).

Ms Millard answered that the provision applied to all organs of state which had information that warranted protection. Thus a bus company would not have to comply with the requirements, since they did not deal with classified information. SANDF and SAPS already had internal processes in place to monitor these functions. They had indicated that they had the capacity to provide the necessary training and oversight. They would however also have to apply the criteria as set out in the Bill.

Ms D Smuts (DA) asked why commercial information was being classified as confidential in terms of this Bill, since there was already legislation dealing with this. By including the provision in this Bill, it would allow Eskom, for example, to source inadequate coal in insufficient quantities, and then to hide behind this provision (which would prevent it from having to account to its clients). The provisions of S239 of the Constitution were too wide in dealing with this matter.

Ms Millard said that it did not apply to all commercial information, but only the information in the hands of the State.

Ms Smuts said that this would apply to Eskom, since they were a State owned enterprise.

Ms Millard said that in order to classify information, such information would still have to meet the criteria set out in the Bill. If the State contracted persons/bodies to do work on its behalf, it was important to ensure that State information was being protected.

Ms Smuts accepted this explanation but felt that the application of S239 of the Constitution to organs of state was too broad.

Dr Cwele referred to Clause 26, which dealt with the automatic declassification of information. He asked how this was dealt with in the context of SA’s negotiated settlement. He also asked if they had looked to other countries to see how they dealt with this issue (for example East Germany).

Ms Millard said that information which had been classified in terms of the negotiated settlement would not automatically be disclosed. Instead of declassifying all that information on the one hand; or letting it all remain classified on the other, Government had decided to declassify the information and then classify that which complied with certain principles. There was no standard for this matter internationally, since all countries dealt with the matter differently. In Germany they had initially declassified all the information. This position has since changed and one now has to apply and establish a basis of interest.

Mr Landers said that one should guard against legislating for an individual. One should not look at who the current Minister was when drafting legislation, as one does not know who his successor will be. One has to be careful to whom one gives so much authority and power.

Adv Swart referred to the fact that the Minister may exempt organs of state from the application of the Bill on good cause. He asked if this happened on application by the department and if it could happen unilaterally.

Ms Millard replied that all organs of state did not have to set up procedures to protect information, since not all state organs dealt with information requiring protection. They therefore should not classify their information. State organs would apply to the Minister and have to show good cause for the Bill not to apply. State organs would be assisted with the process of information management by the National Intelligence agency, who would provide training in that regard.

Adv Swart asked what the SANDF had said about the time constraints regarding implications of implementing the Bill.

Ms Millard said that there had been a reference group consisting of SAPS, Department of Justice, SANDF officials; who had dealt with the classification and declassification of documentation. This process had however been haphazard. SANDF had assured the Ministry that they could set up their procedures and have these systems in place within the next ten years. It may be possible for Departments to go through individual documents. Sometimes however these can be dealt with in bulk.

Mr Landers asked how practical Clause 47 was. He asked if the Minister would really go to court because someone presented him/her with false information.

Ms Millard said that the provision was introduced simply to give the State the discretion to take action against people who knowingly gave them false information.

The Chair felt that it would be difficult to support the provision unless it provided that the State could take action against a person who knowingly gave the State false information in order to mislead, obtain reward or cause prejudice to the State. He did not see any reason that these additional criteria should not be accommodated.

The Chair concluded that very important issues had been raised in the discussion. He referred in particular to the discussion on the way in which information from the apartheid era would be dealt with.

The Chair said that Ms Millard should go through the brief presentation on the other two Bills. He added that the amendments to these Bills were merely of a technical nature.

National Strategic Intelligence Amendment (NSIA) Bill
Ms Millard agreed that the amendments to the Bill were of a technical nature. The Bill established the National Communications Centre (NCC) as the signals intelligence capacity. Ms Millard referred to documents she had circulated to Members explaining how the interception of signals was regulated and also what signals intelligence was. She said that the Bill further provided for the SA Secret Service (SASS) to assist NIA with security screening functions. It also allowed for the Director General of NIA to delegate the issuing of security functions. It also amends S5 (a) of the Act to establish field vetting units by state organs not forming part of the National Intelligence Structure, in order to enforce the National Vetting Strategy.

Intelligence Services Amendment Bill
Ms Millard said that the amendments to this Bill too were of a technical nature. It removed the requirement for the establishment of a training fund for the Academy. It also changed the retirement age of those in the service to 55 (in line with the broader Public Service provisions). The Bill provided for consequential amendments which arose as a result of the NSIA Bill. The Bill allowed for the Minister to delegate functions regarding the acquisition, maintenance and disposal of immovable property. The policy areas raised in the Bill were the establishment of the NCC as the national signals intelligence agency.

Signals intelligence included the monitoring of all signals from satellite or cable. These were collected in bulk, after which information obtained would be processed. In order for the signal to be intercepted in terms of Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) it was necessary to (1) obtain a warrant, (2) identify the individual transmitting the signal, and (3) indicate what the person was suspected of. In terms of this Bill the NCC can collect foreign signals intelligence which begins externally. They are not authorized to do so if the signal begins in the borders of SA.

Discussion
Adv Swart asked if RICA would not apply to a South African phoning from another country into SA.

Ms Millard said that the nationality of the person did not matter. Whether or not the Bill applied depended on where the signal originated. If it originated in SA, RICA would apply and those requirements would have to be met. If the signal ended in SA or passed through the borders of SA, the Bill would apply.

Adv Swart referred to the fact that the Minister would be allowed to delegate security clearance. He asked to what level of seniority this could be delegated.

Adv Cwele asked how the Bill could have no financial implications when it was establishing a new Department.

Ms Millard said that NCC currently exists as an organizational component of NIA. 500 posts had been approved and 300 of these were filled.

The Chair interrupted, saying that the presenter was commenting on operational matters.

Ms Millard asked if she should give the Committee a quick presentation on signals intelligence.

The Chair said that this should be done at a later stage.

Mr I Vaadi (ANC) felt that the Committee should hold a closed discussion on the operational matters of the NCC.

The Chair asked Members if it would be necessary to hold meetings on 19, 20 and 23 June as scheduled.

Mr Vaadi felt that there would be no purpose in holding the scheduled meetings. The deadline for submissions had been extended until Friday, 20 June.

Dr Cwele agreed that those meetings be cancelled but suggested that a small multi party committee should meet on the afternoon of 24 June to go through submissions and decide whom to invite to public hearings.

Mr Landers supported this proposal.

The Chair said that the Committee secretary would liaise with Members to ascertain who wanted to be involved with the multi-party committee on Tuesday.

The Chair adjourned the meeting.

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